Ng Poh Hong v 1. Kek Yok Lan (22NCVC-380-07/2014)

KEK YOK LAN ... DEFENDAN-DEFENDAN (NO K/P: 320530-10-5292) (sebagai Pentadbir Bersama kepada harta pusaka So Lian Lee, si mati)

LEE SAH HONG (NO K/P: 500421-10-5136) (sebagai Pentadbir Bersama kepada harta pusaka So Lian Lee, si mati) JUDGMENT 2 INTRODUCTION [1] The Plaintiff, Madam Ng Poh Hong is the Administratrix and beneficiary for the estate of Mr Ng Hai, the deceased who passed away on 23.06.2011 at the age of eighty six (86), while the Defendants, Madam Kek Yok Lan and Madam Lee Sah Hong are Joint Administratrices for the estate of Mr So Lian Lee, the deceased who passed away on 16.11.1971. [2] Both deceased, Mr Ng Hai and Mr So Lian Lee were friends who cultivated a paddy land known as GM 857, Lot 9775, Mukim Pasir Panjang, Tempat Sekinchan Block S9, Sabak Bernam previously known as AA 632/64 Lot 14662 Mukim Tanjung Karang and thereafter known as HSM 1246 Mukim Tanjung Karang] (“said Land”) since the said Land was still jungle. [3] This is the Plaintiff’s suit against the Defendants for the following reliefs:

an order that the Defendants shall comply with and to honour the trust for half portion of the said Land for the interest and benefit of the Plaintiff; 3

an injunction order to restrain the Defendants or their representatives from chasing or disturbing the Plaintiff’s representative in possession, planting and/or cultivation on half portion of the said Land;

the Defendants to transfer ownership of the half portion of the said land to the Plaintiff’s name as of the deceased Mr Ng Hai and/or as the Administratrix to the estate of Mr Ng Hai within 14 days after the judgment is granted; and

costs and any other relief. THE PLAINTIFF’S CASE [4] It is the Plaintiff’s submission that the deceased Mr So Lian Lee was the trustee for the deceased Mr Ng Hai on the half portion of the said Land where the deceased Mr Ng Hai cultivated and owned. [5] The Plaintiff avers that after Mr So Lian Lee passed away, his four sons (who became the beneficiaries to his estate) namely (1) Mr So Pan Tong, (2) Mr So Thong Pen, (3) Mr So Tiong Ho and (4) Mr So Eng Kong made admission and confirmation vide P1 that half of the said Land had been under Mr Ng Hai’s cultivation and ownership since the 4 said land was still jungle. The first Defendant Madam Kek Yok Lan is Mr So Thong Pen’s wife while the second Defendant Madam Lee Sah Hong is Mr So Pan Thong’s wife. [6] According to the Plaintiff, Mr So Pan Tong, Mr So Thong Pen, Mr So Tiong Ho and Mr So Eng Kong are bound by P1 and that they also expressly admitted and agreed, inter alia –

that vide P1, half portion of said land had been given to the deceased Mr Ng Hai to be owned by him forever without any hindrance or obstruction;

that the deceased Mr Ng Hai is free to occupy, cultivate on half portion of the said Land and to take the proceeds from half portion of the said Land with no disturbance by Mr So Pan Tong, Mr So Thong Pen, Mr So Tiong Ho and Mr So Eng Kong and their beneficiaries;

that when the letters of administration in respect of the said land is done, and should the government allow to change the name of half portion of the said Land to the deceased Mr Ng Hai and should this be not arranged, then Mr So Pan Tong, Mr So Thong Pen, Mr So Tiong Ho and Mr So Eng Kong 5 admit the deceased Mr Ng Hai is fully entitled to and has full authority over half portion of the said Land;

that Mr So Pan Tong, Mr So Thong Pen, Mr So Tiong Ho and Mr So Eng Kong admit that they will not renege on P1 and that P1 is irrevocable; and

that P1 shall be binding on both parties as well as the powers of attorneys and the beneficiaries of both parties. [7] The Plaintiff submits that the deceased Mr So Lian Lee held half portion of the said land on trust for the interest and/or benefit of the deceased Mr Ng Hai, and therefore, the Defendants as the beneficiaries who inherited the estate of Mr So Lian Lee also hold half portion of said Land on trust for the interest and/or benefit of the Plaintiff and beneficiaries to the estate of Mr Ng Hai. [8] The Plaintiff’s present claim arises from the Defendants refusal, neglect and/or failure to transfer the half portion of the said Land to her name. 6 THE DEFENDANTS’ CASE [9] The Defendants on their part deny that the deceased Mr Ng Hai had acquired any interest to the said Land. They state that Mr So Lian Lee was the original settler on the said Land and that he merely permitted Mr Ng Hai to cultivate part of the said Land and sell the produce. They deny any knowledge of P1 and submit that in any event the claim is time-barred. [10] The Defendants aver that the Plaintiff has no right to the said Land whatsoever and consequently has no right to rent part of the said Land to any person. They have counterclaimed against the Plaintiff seeking possession of the said land occupied by persons claiming a right as tenant under the Plaintiff. PLAINTIFF’S REPLY AND DEFENCE TO COUNTER CLAIM [11] The Plaintiff responds by stating that her beneficial interest was recorded by the Land Administrator. She avers that the fact that her father Mr Ng Hai made payment for the quit rent and/or collected the half portion repayment from Mr So Lian Lee for a few decades, and the fact that he received government subsidies for fertilizer and pesticide, 7 are supportive of Mr Ng Hai’s beneficial interest over half share of the said Land. [12] The Plaintiff also raises the issue of breach of trust by the first Defendant in refusing to transfer the half portion of said Land. ISSUES BEFORE THE COURT [13] Whether Mr Ng Hai, the deceased owned half portion of the said Land during his lifetime. [14] Whether at the material times the deceased Mr So Lian Lee was holding the half portion of the said Land on trust for the benefit of the deceased Mr Ng Hai. [15] Whether the Defendants’ refusal and failure to transfer the half portion of the said Land to the Plaintiff amount to a breach of trust and terms contained in the Agreement dated 09.03.1973 (“exhibit P1”). 8 [16] Whether the Suit herein is statute-barred under the Limitation Act 1953 (Act 254).

Whether Mr Ng Hai, the deceased owned half portion of the said Land during his lifetime [17] The parties agree that both deceased were friends and during their lifetime each cultivated half portion of the said Land with paddy since the said Land was still jungle. [18] The crux of the Plaintiff’s case rests on the testimony of PW1, a Penolong Pengarah with the Jabatan Ketua Pengarah Tanah dan Galian (Persekutuan) who gave evidence that the Defendants, together with another beneficiary to the deceased’s estate namely Mr So Phei had on 12.08.2008 during the distribution proceedings originally initiated by Mr So Pang Tong (the second Defendant’s husband) agreed to give half portion of said Land to Mr Ng Hai. [19] PW1 also gave evidence that on the subsequent distribution hearing date of 20.11.2008, the deceased Mr Ng Hai was present 9 before him and produced a copy of P1 which PW1 upon inspection found to be stamped and signed by Mr Ng Hai and four of Madam So Lian Lee’s children. [20] Mr So Lian Lee’s beneficiaries never raised any issue of fraud or forgery of P1 during the distribution proceedings. PW1 was the author of the endorsement stating “2. Ng Hai ada kepentingan untuk separuh bahagian tanah GM 857 sahaja melalui Surat Perjanjian pada 09/03/1973” in the Pemberian Surat Kuasa Mentadbir Di Bawah Seksyen 13 [pages 15 to 16 CBD1]. [21] PW2 who is also the Plaintiff in the instant case on her part testified that her late father Mr Ng Hai had been dutifully paying the quit rent for his half portion of the said Land and that he had enjoyed peaceful and quiet possession of his half portion free from interference and disturbance from Mr So Lian Lee. PW2 also testified that her father was a registered farmer receiving subsidies from Bernas and aids for provisions of fertilizers. 10 [22] Looking at the documentary evidence presented to the court, pages 17 to 23 of the Ikatan Dokumen Bersama purportedly show that the deceased Mr Ng Hai had been faithfully paying the quit rents for the said Land. The Plaintiff testified that it was her father who would first pay the quit rent for the said Land in full before seeking reimbursement for half portion from Mr So Lian Lee and his next of kin after his death. [23] Although the quit rent receipts bear Mr Ng Hai’s residential address lending support to the Plaintiff’s claim that her father was indeed the one who paid the quit rent for the said Land, I am not prepared to go further and say that that suffices to establish that the deceased Mr Ng Hai enjoyed a beneficial interest in half portion of the said Land. Going by the oral and documentary evidence before me, I find that the most that can be said in this case is that Mr Ng Hai was occupying and cultivating the said Land with the consent of Mr So Lian Lee as a licensee. [24] According to pages 5 to 8 of the Ikatan Dokumen Bersama, Mr So Lian Lee was the registered owner of the said Land. Since Mr So Lian Lee died without leaving a will, his estate would then have to devolve according to the laws governing intestacy. 11 [25] The deceased Mr So Lian Lee passed away on 16.11.1971. P1 was entered into between the relevant parties on 9.3.1973. Subsequently, the Grant of Letters of Administration in respect of Mr So Lian Lee’s estate was issued on 12.8.2008 [see pages 15 to 16 Ikatan Dokumen Bersama]. [26] The evidence before me shows that when Mr So Lian Lee passed away in 1971, he was survived by nine (9) children. If reference is made to P1, one would note that it was signed by only four (4) out of the nine

surviving children of Mr So Lian Lee, omitting the other five (5) children who are also the beneficiaries to his estate. The issue which then falls to be determined is whether the aforementioned four children had the legal capacity to sign P1 and thus relinquish half share of the said Land. [27] I am in agreement with the learned counsel for the Defendants that the law as propounded in Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188 applies. In that case, His Lordship Mohamed Dzaiddin. FCJ, while delivering the judgment of the Federal Court said at p 196: 12 “[I]t is our conclusion that in law, a beneficiary under an intestacy has no interest or property in the personal estate of a deceased person until the administration of the latter’s estate is complete and distribution made according to the law of distribution of the intestate estate.” [28] This principle was subsequently revisited and reaffirmed by the apex court in Futuristic Builders Sdn Bhd v Harinder Singh & Ors [2008] 3 CLJ 117 at p 130: “[27] … It is only an administrator appointed under the Probate and Administration Act 1959 that will have the authority to do so. Until the grant of letters of administration is made no body has the authority to act on behalf on the Estate.” … [28] … The 2nd and 6th respondents could not have entered into the agreement on behalf of the Estate without the grant of the letters of administration. Therefore we would hold the agreement in question invalid and unenforceable as against the respondents.” 13 [29] So too in the present case. When P1 was executed in 1973, letters of administration had not been taken out on Mr So Lian Lee’s estate. Consequently, whatever arrangement entered into between the four beneficiaries of Mr So Lian Lee and Mr Ng Hai as seen in P1 does not bind the estate of Mr So Lian Lee. Whether the deceased Mr So Lian Lee was holding the half portion of the said Land on trust for the benefit of the deceased Mr Ng Hai [30] As was mentioned earlier, the deceased Mr So Lian Lee was the registered owner of said Land. Section 89 of the National Land Code states: “Every register document of title duly registered under this Chapter shall, subject to the provisions of this Act, be conclusive evidence - a) that title to the land described therein is vested in the person or body for the time being named therein as proprietor; and b) of the conditions, restrictions in interest and other provisions subject to which the land is for the time 14 being held by that person or body, so far as the same are required by any provision of this Act to be specified or referred to in that document.” [31] The doctrine of stare decisis binds me to follow the principle enunciated by the superior courts which is mirrored in section 89 that under the Torrens system, the register is everything. In Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212 at 214, Lord Diplock in delivering the judgment of the Privy Council, remarked that: “The Torrens System of land registration and conveyancing, as applied in Malaya by the National Land Code, has as one of its principal objects to give certainty to title to land and registrable interests in land. Since the instant case is concerned with title to the land itself their Lordships will confine their remarks to this, though similar principles apply to other registrable interests. By Section 340 the title of any person to land of which he is registered as proprietor is indefeasible, except in cases of fraud, forgery or illegality, and even in such cases a bona fide purchaser for value can safely deal with the registered proprietor and will acquire from him an indefeasible registered title.” 15 [32] It is instructive at this juncture to refer to the judgment in Low Tin Ying @ Low Yong Lian v Low Yong Thuan [2016] 3 MLJ 332 at 347 where the Court of Appeal stated: “[51] Firstly, there is nothing on the title or memorandum of transfer to bear out the existence of such a trust. Section 344 of the National Land Code (“the NLC”) provides for the registration of any trust created in the memorial of registration. In short, the title does not reflect that the appellant holds the said land on trust as a trustee. There is no endorsement with the word “trustee” on the title deed to the said land to evidence the existence of a valid trust in favour of the siblings. [52] There is no written document or trust deed to support the existence of a trust… It is inconceivable that there would be no claim to the property during the entirety of this period, if indeed such a trust subsisted. The indefeasibility of title enjoyed by the appellant ought not to be undermined by the mere suggestion, some fifty years later, of the nebulous existence of a trust. 16 [33] In the present case, only Mr So Lian Lee’s name appears on the title to the said Land. There is no mention of Mr Ng Hai’s name. Given the conspicuous absence of Mr Ng Hai’s name on the title and the fact that there was no evidence of any attempt made by him or his beneficiaries to register the purported trust on the title during Mr So Lian Lee’s lifetime before his death in 1971 until the distribution proceedings before PW1 in 2008, the court rejects the notion that a trust was created on the said Land for the benefit of Mr Ng Hai and the Plaintiff’s submissions on this issue must fail. Whether the Defendants’ refusal and failure to transfer the half portion of the said Land to the Plaintiff amount to a breach of trust and terms contained in P1 [34] Since I have answered the previous issue in the negative, it goes without saying that there can be no breach of trust vis-à-vis P1 on the part of the Defendants. Whether the Suit herein is statute-barred under the Limitation Act 1953 [35] The Plaintiff in her submissions contends that since this is a case where breach of trust was pleaded, section 9 of the Limitation Act which stipulates that actions to recover land must be instituted within 12 years 17 from the date the cause of action accrues, does not apply by virtue of section 22 of the same. [36] Evidently, this argument is misconceived as I have held above that there is no trust over the Land in favour of the Plaintiff. At any rate, I am mindful that the Plaintiff has taken an inordinately long time to commence this action. As was rightly pointed out by counsel for the Defendants, P1 was entered into in 1973 while the present suit was only filed in 2014. There is a lapse of about four decades that was never properly accounted for by the Plaintiff. As the law stands, it is trite that inordinate delay has the effect of extinguishing the reliefs sought by a litigant if it cannot adequately explain the reasons for its indolence: Tan Poh Yee v Tan Boon Thien [2017] 3 CLJ 569 (CA). [37] In light of the above, the Plaintiff’s claim is dismissed with costs. Counter claim [38] The defendants counter claim is for an order praying that the plaintiff and/or his agents and/or servants and/or any person that has taken possession through the plaintiff to vacate the said land. I allow the counter claim. 18 [39] Counsel for the defendants, Mr Paari Perumal brought to the attention of this court that the Plaintiff had caveated the said Land. This was confirmed by counsel for the Plaintiff, Mr N Rajentharan. Mr Paari Perumal pray for this court to make a consequential order under section 417 of the National Land Code (“NLC”) to order the Registrar or any Land Administrator of the relevant land office to remove the Plaintiff’s caveat. I allow and make such an order since it is permitted under section 417 NLC and my decision to do so is supported by the Federal Court’s case of Malaysia Building Society Bhd v KCSB Konsortium Sdn Bhd [2017] 4 CLJ 24. [40] Further the Plaintiff prayed that she be allowed to harvest the produce of the said Land and pray that she be given until the end of December 2017 to do so since the paddy grown on the said Land would only be due for harvest then. Mr Paari Perumal did not object to the request and as such I make another consequential order that the Plaintiff be allowed to harvest the paddy and take any produce from the said Land and that she will do so and vacate the said Land before 31 December 2017. Plaintiff’s claim is dismissed. Defendants’ counter-claim is allowed. Costs RM30,000.00 to the defendants subject to allocatur. 19 (SURAYA OTHMAN) Judge, Civil Court, High Court of Malaya, Shah Alam, Selangor. Dated : 29th September, 2017 Case(s) referred to:

Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 3 MLJ 188;

Futuristic Builders Sdn Bhd v Harinder Singh & Ors [2008] 3 CLJ 117 at 130;

Eng Mee Yong & Ors v Letchumanan [1979] 2 MLJ 212 at 214;

Low Tin Ying @ Low Yong Lian v Low Yong Thuan [2016] 3 MLJ 332 at 347;

Tan Poh Yee v Tan Boon Thien [2017] 3 CLJ 569. Legislation referred to:

Limitation Act 1953 (Act 254)

Section 89, 417 of the National Land Code. Solicitors:

En Rajentharan Nadesan & Cik Siew Kai Lee [Tetuan GH Tee & Co.] bagi pihak Plaintif.

En Paari Perumal [Tetuan Perumal Brothers] bagi pihak Defendan-Defendan.